ALJDEC decisions subject to certification as final

2011A-1482-ROC · Registrar of Contractors · 2011-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 12, 2011, at 8:00 a.m. APPEARANCES: Complainants Jennifer Renshaw and Gregg Seelenbrandt were represented by Patricia A. Premeau, Esq., Ridenour Hienton & Lewis, P.L.C.; Respondent Ronald James Strayer dba Strayer Electric was represented by Thomas S. Moring, Esq., Pak & Moring, P.L.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On November 15, 2010, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC269217, Class K-11 for dual electrical contracting to Ronald James (“R.J.”) Strayer doing business as (“dba”) Strayer Electric (“Respondent”).[1] On March 10, 2011, the Registrar received from Jennifer Renshaw, D.V.M. a complaint against Respondent, alleging that Respondent had breached its contract to install a new electrical subpanel at her residence at 2831 Val Vista Drive in Phoenix, Arizona by penetrating the roof. The Registrar designated Dr. Renshaw’s complaint as Case No. 2011-1482. The Registrar assigned Case No. 2011-1482 to its inspector, Rick Oelke, for investigation. On April 12, 2011, after Inspector Oelke performed a jobsite inspection, he issued a Corrective Work Order (“CWO”) that required Respondent within fifteen days to perform certain corrective work, in relevant part as follows: 1a) Electrical conduit penetrating the foam roof has not been completed in a professional workmanlike manner. Proper penetration should include approved flashings, compatible materials, and rated support for the electrical combiner box. Contractor should correct the unacceptable condition by appropriate means.

1b) It is this Inspector[‘]s opinion that the placement of the electrical conduit for the branch circuit from the electric panel to the newly installed sub-panel was not clearly defined in the written documents, and is subject to interpretation. The conduit for the secondary branch circuit supplying power from the sub-panel to the shed is not installed per the written documents. The intent of the written documents for the secondary branch was to install the conduit on the exterior of the garage wall[,] not across the roof of the home. Contractor should install the conduit as contracted.

2) The flip top electrical box on the roof has not been installed in a weather-lap manner. Electrical equipment must be selected and installed in the manner it is intended to be applied. The current application would require a weatherproof junction box with proper support. Contractor should correct the condition by appropriate means.

3) Installation of electrical conduit, feeding the electrical circuits on the west side of the home, along the roof of the structure does not meet contractual requirements (see #1b above). Contractor should correct the condition by appropriate means.

4) Penetration (repair) of the garage roof has not been done in a professional, workmanlike manner (see #1a above). Contractor should correct the condition by appropriate means.

5) Contractors are required to memorialize all changes to the executed agreement in writing (§ARS 32-1158). Contractor’s responsibilities or intents outside of the written agreement could not be determined at the time of the jobsite inspection.

Both Dr. Renshaw and Respondent requested an administrative hearing. On June 28, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(2), (3), namely A.A.C. R4-9-108, and (23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that Dr. Renshaw refused to allow Respondent reasonable access to comply with the CWO unless it agreed to perform additional work that was beyond the scope of the parties’ contract. The Registrar amended the complaint in Case No. 2011-1482 to include as a party complainant Gregg Seelenbrandt, Dr. Renshaw’s companion and co- habitant in the residence, who had entered into the contract with Respondent on behalf of himself and Dr. Renshaw (“Complainants”). The Registrar referred Case No. 2011-1482 to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on September 12, 2011. Inspector Oelke testified. Complainants submitted 26 exhibits and presented the testimony of two witnesses: (1) Mr. Seelenbrandt; and (2) Wallace S. (“Wally”) Tuttle, Respondent’s estimator, who performed the contract negotiations on Respondent’s behalf and prepared the proposal that became the parties’ contract. Respondent submitted ten exhibits and presented the testimony of Mr. Strayer. According to the Registrar’s electronic record, Respondent’s license is current and in good standing. This appears to be the only complaint pending against the license. Hearing Evidence The Parties’ Contract In March 2007, Ky Ko Roofing Systems, Inc., License No. ROC145748, Class C- (“Ky Ko”) installed a new roof on Dr. Renshaw’s house with a 10-year warranty. In October or November 2010, Mr. Seelenbrandt moved into Dr. Renshaw’s house. The electrical service for Complainants’ house is on the east side and the garage is on the west side of the house. The house has a built-up flat foam roof enclosed by parapet walls. Dr. Renshaw operates Assisi Veterinary Practice, a mobile veterinary clinic, out of a truck that has a generator on board to operate the veterinary equipment. The garage at Complainants’ house has two RV plugs that Dr. Renshaw uses every night to recharge her truck’s batteries to operate her business. In January 2011, a conduit across the roof from the electrical service to the garage provided electrical power to the RV plugs.

Mr. Seelenbrandt owns numerous power tools. He planned to erect a shed west of the garage, and desired to bring power to the shed. To furnish electrical power to the RV plugs in the garage and to the shed, Mr. Seelenbrandt planned to have an electrical subpanel installed inside the garage’s west wall. Mr. Seelenbrandt shared his plans with a neighbor, who recommended Respondent for the job. Mr. Seelenbrandt contacted Mr. Tuttle about whether Respondent could install a subpanel in the garage to provide electricity for the RV plugs and the shed. On December 30, 2010, Mr. Tuttle came out and walked the job with Mr. Seelenbrandt. Mr. Seelenbrandt testified that he was “adamant” in his discussions with Mr. Tuttle that the conduit providing electricity to the subpanel should not penetrate the roof, and that he told Mr. Tuttle the conduit should penetrate the block wall to enter the garage. Mr. Tuttle testified that he did not remember Mr. Seelenbrandt telling him that the conduit providing electricity to the subpanel should not penetrate the roof. On January 5, 2011, Mr. Tuttle e-mailed to Mr. Seelenbrandt Respondent’s proposal to install the subpanel for a total cost of $1,225.00, 50% due at the time of the contract signing. The proposal described the scope of work as follows: Provide & Install the Electrical portion per job walk on 12/30/10. ➢ Install 100 amp Sub Panel inside Garage. New conduit to be run over the roof and down into the new Garage Sub Panel. Existing conduit running across roof with (2) 30 amp 120 volt circuits to be abandoned. ➢ Install new conduit and wiring along outside of Garage to re- feed (2) 30 amp 120 volt circuits and (1) 15 amp 120 volt circuit for future shed power.

Mr. Tuttle and Mr. Strayer testified that the Uniform Electrical Code only allows four 90° bends in a conduit, or a total of 360°, before the electrician is required to install a junction box (“J-box”). Mr. Tuttle and Mr. Strayer testified that the allowable 360° was reached by running the electrical conduit up from the service on the east side of the house, bending 90° to cross the top of the east parapet wall, bending another 90° to run down the east parapet wall to the roof, bending another 90° to run across the roof, and twice bending 45° to cross different elevations on the roof to reach the inside of the west parapet wall where Respondent planned to install a J-box to allow the conduit to pass down through a hole in the garage roof to the subpanel to be installed on the interior of the garage’s west wall. Mr. Tuttle and Mr. Strayer testified that Respondent’s crew would understand the scope of work in the proposal, “[n]ew conduit to be run over the roof and down into the new Garage Sub Panel [emphasis added],” to mean that the conduit would penetrate the roof above the subpanel. On January 5, 2011, Mr. Seelenbrandt responded to Respondent’s initial proposal, requesting that the proposal be amended to provide for metal conduit because PVC conduit would not hold up to the Arizona sun and would “tend to sag between anchor points causing unwanted tension in the encapsulated wire.” Mr. Seelenbrandt also requested that Respondent remove the existing conduit, reuse the existing wire, and use the same layout for the new conduit. The record in this matter does not include the location where the old conduit entered the garage. Mr. Seelenbrandt testified that Mr. Tuttle said that Respondent could not use the same conduit for the new circuit because the electrical wire required for the new circuit had a larger diameter. Mr. Seelenbrandt testified that it ended up not being possible to place the new conduit in the same location as the old conduit. On January 10, 2011, Mr. Tuttle e-mailed to Mr. Seelenbrandt Respondent’s second proposal to install the new electrical subpanel on the west wall of Complainants’ garage for the same price as the initial proposal, $1,225.00, 50% due at contract signing. The revised scope of work provided as follows: Provide & Install the Electrical portion per job walk on 12/30/10. ➢ Install 100 amp 20 space main lug type Sub Panel inside Garage. New EMT conduit to be run over the roof and down into the new Garage Sub Panel. Wire feeding new sub panel to be (3) #1 THHN and (1) #4 THHN for ground. Existing conduit running across roof with (2) 30 amp 120 volt circuits to be removed and relocated to re-feed existing circuits. ➢ [Respondent] to provide and install a new 100 amp 2 pole QO style breaker at main electric panel to feed new sub panel. ➢ Install new 1” EMT conduit and wiring along outside of Garage to re-feed (2) 30 amp 120 volt circuits and (1) 15 amp 120 volt circuit for future shed power. 30 amp circuits to be fed with #10 THHN wire and 15 amp circuits to be fed with #14 THHN wire.

On January 10, 2011, Mr. Seelenbrandt sent an e-mail to Mr. Tuttle, informing him that the second proposal looked good and that he was satisfied with “the price, material, and work to be complete[d].” Mr. Seelenbrandt stated that “I would like to meet again to pay the deposit (50%) and also have you look on the roof to see the lay out of the currant [sic] conduit.” The parties had some difficulty arranging a time to meet, and Mr. Seelenbrandt twice expressed his desire for Mr. Tuttle to look at the roof again. On January 11, 2011, Mr. Tuttle sent an e-mail to Mr. Seelenbrandt that “I will take a look at the roof today and let you know how it looks.” On January 12, 2011, Mr. Tuttle sent an e-mail to Mr. Seelenbrandt, informing him that the method that Respondent used to run conduit pipes across flat roofs was to strap the pipe to saddles made from pressure- treated 2”x4” wood that were not fastened to the roof. Mr. Tuttle assured Mr. Seelenbrandt that “we do not penetrate the roof with fasteners so there is no worry of roof leaks.” Mr. Seelenbrandt testified at hearing that if Mr. Tuttle reassured him that Respondent would not penetrate the roof with 1/8” fasteners, Mr. Seelenbrandt reasonably believed that Respondent would not cut a 2” hole in the roof to drop the conduit into the garage. Mr. Strayer testified that he would never attach a conduit to a roof because as the roof heats up and cools down, it expands and contracts, causing movement in the conduit that may result in roof leaks if the conduit was fastened to the roof. On January 16, 2011, Mr. Seelenbrandt signed the second proposal. Mr. Seelenbrandt delivered his personal check to Respondent for $612.50 to begin the job a letter in a sealed the envelope. The letter provided the code for the security key pads in the garage and at the RV gate, and admonished Respondent as follows: Please take the utmost care while working on the roof. We have a flat roof and I understand this type of roofing can be easily punctured[.] It may be best to place a series of plywood strips or heavy cardboard down to create a walking path thus increasing the weight distribution of each foot step.

Respondent’s Performance of the Contract On January 26, 2011, Respondent’s crew started the job of constructing the new conduit and electrical subpanel in the garage. Respondent’s crew focused on providing power to the RV plugs in the garage so that Dr. Renshaw could recharge the batteries in her work truck that evening. Mr. Seelenbrandt was not at home when Respondent’s crew started the work. Mr. Seelenbrandt testified that he marked with green tape the inside of the west garage wall where he wanted the subpanel to be installed and where he wanted the penetration for the conduit. When Mr. Seelenbrandt came home and saw that Respondent’s crew had penetrated the garage roof to run the conduit from the J-box on the roof to the subpanel, he called Mr. Tuttle to excoriate him for Respondent’s alleged poor workmanship or breach of contract by penetrating the roof. On January 26, 2011, Mr. Strayer called and left a voicemail for Mr. Seelenbrandt, in relevant part as follows: Umm, I got a call from Wally that you called upset about us being on the roof. I understand that. The letter that you put in with your deposit check uh was just given to the office and not opened by myself. Umm, there’s no excuses here but just letting you know Wally did not see the letter. We didn’t share it with him and I didn’t know if; I just opened it myself and looked at it and saw you had grave concerns for the roof. Umm, we are friends with many contractors . . ., so we will take care of any issues that you have or concerns you have on the roof. Please do not concern yourself with, meaning don’t worry about it. We will take care of it. We will make sure you are happy. That is the goal and you have a good night.

The January 26, 2011 voicemail is the first direct communication between Mr. Strayer and Mr. Seelenbrandt. Mr. Strayer testified that he did not know the nature of Complainants’ complaints when he left the voicemail acknowledging that “mistakes were made,” only that Mr. Seelenbrandt was extremely upset. For all Mr. Strayer knew, the crew might have left boot prints on the foam roof. The parties subsequently attempted to resolve their differences. Although Respondent was willing to install additional conduit pipe so that it went up, over, and down the west parapet wall on Complainants’ roof and entered the garage through a hole in the block wall on the west side, Respondent demanded an additional $1,552.00 to perform this work. Mr. Strayer testified that Mr. Tuttle initially had underbid the job, and that Respondent could not re-use the electrical wire in the conduit. Complainants disputed Respondent’s additional claimed costs because they argued that the costs were not supported by the documents that they had obtained through a subpoena duces tecum. Because Complainants believed that the location of the J-box on the roof and roof penetration were due to Respondent’s failure to comply with the parties’ verbal agreement, Complainants insisted that Respondent change the point of entry of the conduit at no additional cost. Respondent contacted Ky Ko to address Complainants’ concerns about the warranty on the new flat roof on their house. On February 7, 2011, Obby Hopper, Ky Ko’s qualifying party, sent an e-mail to Mr. Seelenbrandt, stating that he had spoken to Respondent, and that Respondent and Ky Ko agreed Ky Ko would repair the roof penetration in such a way that the warranty on the roof would be unaffected, Respondent would coordinate the repair, and Respondent would pay Ky Ko for the repair. On February 7, 2011, Mr. Seelenbrandt responded to Mr. Hopper’s e-mail, as follows: Having [Respondent] pay KyKo directly for the roof repair is perfectly acceptable. However I will still need a detailed description of the work to be completed on a formal written estimate so that I have a copy for my records[.] Your technician Alan whom [sic] met with me said he wanted to putty the hole and spray foam over the putty. This is not an acceptable repair.

It is imperative every person involved completely and thoroughly understands the work to be completed through proper documentation.

I do not want [Respondent] to coordinate the repair. [Respondent’s] only responsibility to KyKo roofing is the payment for the roof repair. I do not want the possibility of the repair to be swayed, shortcut, or jeopardized do [sic] to price influence caused by repair options. The only acceptable repair is to remove the plywood roof substrate and repair the layers as new.

I will handle all coordination of the project, as I have already contacted [Respondent’s] foreman to schedule the electrical rework.

Mr. Strayer testified that it is not unusual to penetrate a roof for an electrical installation. Mr. Strayer testified that Respondent purchased the materials to perform the corrections required by the CWO and to complete the job, but that Complainants would not allow Respondent access unless it agreed to relocate where the conduit entered the garage and replace the area of the roof where the penetration had been made, at no additional charge to Complainants. Post-CWO Evidence Inspector Oelke testified that he performed a prehearing jobsite inspection on September 9, 2011. Respondent and attorney were not allowed on Complainant’s property at the prehearing inspection. Inspector Oelke testified that none of the items on the CWO had been corrected because Complainants rejected Respondent’s offer to make “certain repairs.” Inspector Oelke testified that the repair to the roof penetration where the conduit passed through to the garage was sloppy because flashing was not used and, without flashing, the repair eventually would fail. Mr. Tuttle testified that the patch of the roof penetration was meant to be a temporary repair that would protect the garage in the event it rained on the evening of January 26, 2011. Mr. Tuttle testified that Respondent’s crew performed the work necessary to provide electrical power to the two RV plugs in the garage and intended to finish the job on the next day, but that after Complainants saw the roof penetration, they refused to allow Respondent to complete the job. Inspector Oelke testified that the J-box on the roof was not weather- tight, that the opening faced toward the sky, and that the J-box was not rated for this application. Inspector Oelke testified that although the deficiency might be cured by turning the J-box 90°, some municipalities would not allow re-use of the J-box because it would have a plug sealing the cut-out made in the improper application. Inspector Oelke testified that the Registrar’s and industry standards allowed Respondent to repair the orientation of the J-box in one of three ways: (1) Replace or if the municipality allowed, re-orient the J-box so that the top was weather-tight; (2) Move the J-box to the inside of the west parapet wall; or (3) Reconfigure the conduit pipe to penetrate the west block wall of the garage. With respect to the secondary conduit to the shed, Inspector Oelke testified that the proposal that Mr. Seelenbrandt signed clearly required the secondary conduit to run on the outside of the west wall of the garage to the shed. Mr. Tuttle and Mr. Strayer testified that Respondent planned to use an LB connector, which is a female connecter that has a smaller footprint than a J-box, to run the secondary electric conduit from the subpanel, through the garage wall, to the shed. Because Complainants refused to allow Respondent to complete the job, however, Respondent did not complete the secondary conduit. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[6] In general, installation of an electrical conduit through a roof complies with the Registrar’s workmanship standards, industry standards, and applicable building codes. The note that Mr. Seelenbrandt sent with his check was not part of the parties’ contract negotiations and even if it were, concerned the possibility of accidental damage to the roof, not the plan to install the electrical conduit across the roof down into the subpanel in the garage. Mr. Strayer’s January 26, 2011 voicemail was not an admission that Respondent made the penetration in the roof contrary to the parties’ agreement. Although Mr. Seelenbrandt was concerned about collateral damage to the roof, Complainants did not establish that he ever informed Respondent categorically that it should not penetrate the roof to install the conduit down to the subpanel in the garage. Therefore, Complainants did not establish that Respondent breached the parties’ contract in violation of A.R.S. § 32-1154(A)(2)[7] by penetrating the roof to install the conduit down to the subpanel in the garage. Complainants established that Respondent’s workmanship did not comply with the Registrar’s workmanship standards in three respects: (1) Improper repair of the roof penetration without flashing; (2) Improper orientation of the J-box above the roof penetration; and (3) Failure to complete the secondary electrical circuit from the subpanel on the interior of the garage wall, across the exterior west garage wall, to the shed. Complainants therefore established that Respondent violated A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108,[8] in these respects. Respondent established that Complainants refused to provide reasonable access for it to comply with the CWO by requiring as a condition of providing such access that Respondent must change the location of the penetration, even though, as noted above, neither the parties’ contract nor applicable code prohibited the conduit from entering the garage through the roof. Because Complainants’ failure to provide reasonable access excuses Respondent’s failure to comply with the CWO, Complainants did not establish that Respondent violated A.R.S. § 32-1154(A)(23).[9] As a licensed contractor in good standing, Respondent is presumed to have the knowledge and expertise to perform repairs in a professional and workmanlike manner. Mr. Seelenbrandt does not have the right to coordinate, supervise, or dictate Respondent’s methods of repair. If Respondent fails to perform repairs in a professional and workmanlike manner, Complainants’ remedy is to request a compliance hearing. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar suspend Respondent Ronald James Strayer dba Strayer Electric’s License No. ROC269217 until Respondent corrects the orientation of the J-box on Complainant’s roof, complies with the contract by installing the secondary conduit from the subpanel through the garage wall and along the exterior of the wall to provide electrical power to the shed, and hires a properly licensed roofing subcontractor to repair the roof penetration. It is further recommended that the Registrar not suspend Respondent’s license and, instead, close Complainants Jennifer Renshaw and Gregg Seelenbrandt’s complaint in Case No. 2011A-1482 if on or before the effective date of the Registrar’s final order, Respondent provides to the Registrar written proof that is satisfactory to the Registrar of one of the following: 1) Respondent has performed the following three actions to comply with the CWO: (a) Corrected the orientation of the J-box on Complainants’ roof in a professional and workmanlike manner; (b) Complied with the contract by installing the secondary conduit from the subpanel through the garage wall and along the exterior of the wall to provide electrical power to the shed; and (c) Hired a properly licensed roofing subcontractor to repair roof penetration, and the roofing subcontractor has repaired the roof penetration in a professional and workmanlike manner; or 2) Complainants have failed to provide reasonable access to allow Respondent to perform such corrective work. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. / / / / / / / / Done this day, September 29, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Previously, Mr. Strayer was the qualifying party and an officer on License No. ROC197714, Class K-11 that the Registrar issued in July 2004, to Strayer Electric Service Corp. at the same address as Respondent’s. License No. ROC197714 was voluntarily cancelled on the same date that the Registrar issued Respondent’s license.

[2] See 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [8] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [9] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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